42 Mr. Gillies placed particular reliance upon Exhibit "ME-1", the relevant parts of which have been set out or summarised earlier. The letter is not referred to in her Honour's reasons and it was submitted that her Honour had overlooked it. The statement in it that the deceased did not feel like "turfing" Bobby out showed, it was said, that she did not want to do so, and she did not do so. The letter was, it was submitted for the appellant, consistent with various statements of the deceased sworn to and, together with them, was consistent with the deceased's accepting an obligation to maintain the appellant.
43 The letter to Mrs. Edmunds relied on does not show the assumption by the deceased of an obligation to maintain the appellant, whom, incidentally, she describes as a "friend" rather than in terms of family membership. First, its emphasis is on action or inaction while the author remains alive. Secondly, its language is that of self-interest. She felt safer with somebody in the unit. If she sold she would lose $100,000. It may be that she would have sold if she could have done so at a profit. Thirdly, and consistently with the self-interested nature of the letter, in 1998 the deceased told Mrs. Laver that she was thinking of selling the unit, but she did not herself tell the appellant that. That is, the occupation by the appellant and what he did for the deceased would not have been a bar to her selling. Nor indeed, in the mind of the deceased, did the subject require discussion with him. That shows that she did not consider herself under any obligation to him. Leaving the letter aside, it is true that the appellant deposed to statements by the deceased to him that he would always have a roof over his head, but it was open to her Honour, I consider, to treat such statements as inconsequential because they did not amount to an assumption of responsibility to the appellant, lacking a promissory nature and being open to be understood as concerned only with the then present time.
44 So far as the appellant suggested that the purchase of the Port Merion unit was done at the suggestion of Mr. Urquhart Junior[26] or was a continuation of the appellant's relationship with him, Mr. Urquhart had not been providing accommodation to the appellant and the evidence of Mr. McCowan established that the deceased bought the unit for her own purposes, namely, in order that she could leave Melbourne during the winter and live on the Gold Coast. Again, she had only her interests in mind.
45 Accordingly, her Honour did not err in declining to find that the deceased assumed an obligation to the appellant to maintain him.
Whether the (alleged) fact of maintenance raises a presumption of obligation to the appellant
46 It was submitted for the appellant that the fact of maintenance raised a presumption of an assumption by the deceased of responsibility for the appellant: there was an acceptance of responsibility by the provision of rent-free accommodation to the appellant. Basically they shared expenses and looked after each other. The strongest fact was that the appellant was in occupation. Reliance was placed on statements in the decisions of the English Court of Appeal in Jolley v. Iliffe[27] and in In re B, decd.[28], which, though cited to her Honour, are not mentioned in her judgment. It was said that her Honour had failed to deal with partial maintenance by the deceased which made the appellant dependent.
47 There are two difficulties with this argument. First, it proceeds on a false premiss. Her Honour was satisfied that the appellant was not being maintained, wholly or partly, by the deceased: he lived rent-free in the unit in exchange for performing the services of a caretaker. Albeit that those services were "well and truly compensated" by the rent-free accommodation, the appellant's caretaking was of considerable assistance to the deceased, securing her unit, affording her flexibility and possibly saving her stamp duty, and it was therefore in her interests, as well as his, that he should have the benefit of rent-free accommodation. For the reasons given above in rejecting the appellant's second point, I am not persuaded that the deceased assumed a responsibility for, or to maintain, the appellant, nor am I persuaded by any other arguments for the appellant that her Honour's conclusions on maintenance and dependency were erroneous.
48 It was contended in particular that it was not open to her Honour to arrive at the conclusion that the appellant was not being at least partly maintained by the deceased because his caretaking services were of much less value than the rent-free accommodation. But the Act (unlike the English Act) does not require an exact pecuniary balancing. The correct analysis is that there was an arrangement convenient to both parties that involved substantial reciprocal obligations.
49 Secondly, the English cases are distinguishable and afford no assistance here. It is true that in Jolley v. Iliffe Stephenson, L.J. expressed the view[29] that the bare fact of maintenance raised a presumption that responsibility for it had been assumed and that appears to have been accepted in In re B, decd.[30]. But those cases turn very largely on a provision which has no counterpart in s.91 of the Act.[31] Since her Honour, correctly in my view, found that the appellant was not being wholly or partly maintained by the deceased at the time of her death and since our Act has no equivalent to the English s.1(3), the English cases were inapplicable and her Honour was free to disregard them.
The appropriate disposition
50 This point was advanced on the assumption that all or at least some of the preceding points had succeeded. My estimation has been that, individually and collectively, they fail, so that, on the appellant's case as argued, no disposition in his favour falls to be made.
Moral duty
51 Her Honour reviewed the history and interpretation of the Victorian legislation and the interpretation of the current New South Wales legislation on the topic and concluded that the proper approach to the new Victorian legislation remained unchanged from that described by Ormiston, J. in Collicoat v. McMillan[32] and that the Parliament did not intend to constrain the freedom of testation unless the deceased breached a moral duty owed to the applicant. As already stated, her Honour held that the appellant had failed to make out a moral duty owed by the deceased to him.
52 It was submitted for the appellant that her Honour was wrong to say that the concept of the "common law" duty to provide still permeated the Act after "codification". Whilst there was much force in what Nettle, J.A. had said in Blair v. Blair[33] as to having regard pursuant to s.91(4)(p) to any other matter considered relevant, the remainder of the principal paragraph in his Honour's reasons was, as I understood the argument, said not to be an appropriate way of dealing with moral duty. It was submitted in the appellant's written outline of argument that the obiter dictum of three of the five justices of the High Court in Singer v. Berghouse[34] was persuasive and that, given what was said to be the exhaustive list of statutory criteria to which the court must now have regard when determining the threshold question, it was neither necessary nor helpful for a primary judge to refer to the deceased's moral duty in respect of the disposition of his or her estate.[35] It was said that the concept of moral duty came into use because there was at the time little guidance for trial judges under the original testator's family maintenance legislation, but that since then there had been a codification of the law in the form of paragraphs (a) to (o) of s.91(4) and one could not now apply that codification by using the "encrusted concept" of moral duty. One could not put a gloss on the criteria. Statements in High Court judgments were cited in support of the proposition that this Court must approach the text of the Act as primary.
53 I accept that last proposition as basic. But, as regards the obiter dictum in Singer v. Berghouse, Ormiston, J. in Collicoat v. McMillan and then this Court in Grey v. Harrison[36] had declined to follow it. Moreover, in a decision given after the reservation of judgment in this case and on which the parties were offered, but did not wish to exercise, the opportunity of making submissions, Vigolo v. Bostin[37], by a majority of three justices[38] to two the High Court after detailed analysis disagreed with the above-mentioned obiter dictum, Callinan and Heydon, JJ. stating that the concepts of a moral duty and a moral claim were not alien to, or in any way outside, the language of the relevant section. Vigolo, Singer v. Berghouse and the two Victorian cases mentioned above were decided on what might be called the traditional form of testator's family maintenance legislation, in which the critical provision posed the question whether "adequate provision [had been made] for the proper maintenance and support"[39] of the widow or another specified relative of the deceased. The present appeal turns on legislation which is different and poses as the first of three questions whether the deceased had "responsibility" to make provision (scil., out of her estate) for (the proper maintenance and support of) the appellant.[40] The word "responsibility" has strong connotations of moral duty, for, if there were a legal responsibility, resort to the Act would be unnecessary and no other description of responsibility suggests itself.[41] Accordingly, whilst recognising that it is now the current s.91 that must be interpreted, one may properly apply a view consonant with the majority decision in Vigolo all the more readily to s.91(4)(a).
54 The submission that in effect the question posed by s.91(4)(a) was to be answered simply by going through paragraphs (e) to (o) overlooks the open-ended
nature of paragraph (p). More importantly, that submission faces the incontrovertible point, as it seems to me, made by Nettle, J.A. in Blair v. Blair[42].
55 Having made the foregoing, largely introductory, observations, I content myself with saying that on the question of moral duty I concur in the reasons of Callaway, J.A.
Conclusion
56 The written submissions for the appellant advanced other, and particular, arguments not mentioned orally. I have also had regard to them. Even so, I have come to the conclusion that her Honour did not err in declining to determine that the deceased had responsibility to make provision for the appellant. Accordingly, I would dismiss the appeal.